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J U D G M E N T
ATUGUBA J.S.C.:-
In this consolidated suit the
plaintiff in the first suit no.
F2453/2002 sued as per the
indorsement on the writ “for
HIMSELF AND AS THE HEAD OF
ONAMROKO ADAIN FAMILY HOUSE NO.
146 AVENOR – ACCRA
V.
1. B.A. QUARCOO H/NO. 24 OKATEI
- NETTEY
STREET, KORLE WORKO – ACCRA
2. JAFRO LARKAI
H/NO. 23 DOMIABRA STREET
KOTOBABI – ACCRA”
Claiming
“a. Declaration that the
Plaintiff has been Head of
Family of Onamrokor Adain
family since 1994 and has
remained same to date.
b.
Perpetual injunction against the
Defendants, from upholding
themselves as Head and Assistant
Head of the Onamrokor – Adain
family.
c.
Declaration that by the Court of
Appeal’s judgment of 16/12/80
the Defendant is estopped from
ever contesting the Headship of
the family of Onamrokor – Adain.
d.
General damages for personal
injury done to the Plaintiff as
a result of the activities of
the Defendants in relation to
the Headship of the family since
the beginning of this year i.e.
2002.
e.
Publication by the Defendants in
all newspapers in country and
sending of circulars to all the
relevant official and customary
authorities denying their
earlier publications and
withdrawing same.
f.
Costs.”
The second writ is intituled
BFA31/2005 “B.A. QUARCOO & JAFRO
MENSAH LARKAI, suing for and on
behalf of the Onamrokor – Adain
Family of Accra as plaintiffs
versus (1) ARTHUR HAMMOND TETTEH
QUARCOO and (2) JUSTICE AYAA
CUDJOE as defendants” claiming
“ 1. An Injunction to
restrain the defendants by
themselves, their servants,
assigns
or agents, or
otherwise howsoever, from
installing a chief at Dome
and
burying Paul Ayitey
Tetteh (Deceased) at the
cemetery reserved for the
substantive head of the
Onamroko Adain family of Accra
-
Costs
-
Any other reliefs that this
Honourable Court may deem
fit
Dated this 13th day of
January 2005, at Okona
Chambers, Accra.”(e.s)
The Grounds Of Appeal
This appeal emanates from the 2nd
plaintiff/appellant/appellant in
the second of the said two
consolidated suits, the 1st
plaintiff having died. His
grounds of appeal are as
follows:
“ (i) Having held that the
action which was instituted by
Paul Ayitey Tetteh was a
personal one which did not
survive his death, the Court of
Appeal erred in not holding
further that B.A. Quarcoo and
Jafro Mensah Larkai thereby
became free to manage and
control affairs of the family in
the respective capacities they
had been appointed to in the
family on account of which Paul
Ayitey Tetteh took action
against them.
(ii)
Since the defendants in that
second suit do not occupy any
traditional positions within the
Onamrokor Adain Family it was
wrong for the Court of Appeal to
hold that Paul Ayitey Tetteh
could be buried by them as head
of that family against objection
by the family led by B.A.
Quarcoo and Jafro Mensah Larkai.
(iii)
Having held that the
consolidation of the two suits
for trial was wrong and the High
Court also had no jurisdiction
to entertain the claim against
Justice Ayaa Cudjoe which was a
cause or matter affecting
Chieftancy could not and had
not been substituted for Paul
Ayitey Tetteh in the first suit
as Plaintiff, the Court of
Appeal erred in not nullifying
the entire trial and directing a
retrial of the second suit as
far as it related only to the
right of the defendants to
conduct the burial of Paul
Ayitey Tetteh as a departed head
of family.
(iv)
The Court of appeal erred in
directing the Onamrokor Adain
Family to get united and bury
Paul Ayitey Tetteh as its head
of family when Paul Ayitey
Tetteh was unable to establish
that he was still head of family
when he died and the two
defendants in the second suit
did not have the locus standi to
prove that he was head of family
when he died.”
The first ground of appeal,
subject to what herein later
will be said of the first leg
thereof, is quite puzzling. If
the Court of Appeal was right in
holding that the first action
moritur cum persona
then there was nothing in
respect of which the court could
adjudicate and declare rights of
any sort. If it survived then
they could only succeed
per allegata et probata.
As to the second ground of
appeal it is based on unpleaded
and unsubstantiated grounds. It
is purely speculative since
there is no issue or evidence in
the case touching and concerning
whether “the defendants in that
second suit do not occupy any
traditional positions within the
Onamrokor Adain Family” or
whether the occupancy of any and
if so of what, traditional
positions, is prerequisite of
those who will effect the burial
of the late Paul Ayitey Tetteh.
In any case the Court of Appeal
did not say that the burial of
the said deceased should be
effected by the defendants.
The Actio Personalis Rule
And now to the third ground of
appeal, which is the
headquarters of the appeal. The
first leg of the first ground of
appeal though infelicitously
formulated, taken together with
this ground of appeal, is that
the consolidation in the
circumstances of the case
vitiated the whole trial and
since the first suit is non est
either because it did not
survive the death of Ayitey
Tetteh or because there was no
subsequent substitution the only
surviving suit is the second
suit, BFA 31/2005 which ought to
be remitted to the trial court
for trial de novo.
It is however clear from the
record of proceedings that the
plaintiff in the said first suit
sued in a representative
capacity on behalf of himself
and the Onamrokor Adain Family,
as head thereof. It is clear
from reliefs (b) (c) and (e)
indorsed on his said writ supra,
that they are for the benefit of
the said family. So also are
most of the averments in the
plaintiff’s statement of claim.
Some of them are as follows:
“5. The Plaintiff says that
he has since 1994 exercised all
the rights and
obligations both customary and
Official attached to the said
status from 1994 and is still
exercising same and some of the
rights and obligations are
representing the family in their
many cases in court especially
over the Dome land the property
of the family and signing all
documents alienating the
family’s properties with
concurrence of the principal
members of the family and the
Secretary of the Council and
performing the customary duty of
distributing part of the
family’s money to the 6 houses
for the annual Homowo Festival.
X
X X
9. However as per the
Court of Appeal judgment given
on 16/12/80 in the case of: B.A.
QUARCOO VRS MANYE O-ADORKOR
ALLOTEY & 5 OTHERS the 1st
Plaintiff herein was adjudged to
have been properly destooled as
a joint Head of Onamrokor –
Adain family for “Mismanagement
of family Property, failure to
account for family monies
collected by him, unauthorized
sales of family lands, refusal
to Co-operate with family
Council and lack of respect and
consideration of the other joint
head, Manye Adokor Allotey as
well as the elders of the family
constituting the family
Council.”
X
X X
12. The Plaintiff says that
the 1st Defendant is
by the said judgment estopped to
put himself forward as a head of
the Onamrokor-Adain family even
if he were to be a true member
of the family.
13. The Plaintiff therefore
says that it is very
contemptuous on the part of the
Defendants herein and all their
collaborators to have made
various publications in the
newspapers and in the form of
circulars to both Official and
Customary institutions in the
country announcing the 1st
Defendant as having been
appointed the Head of
Onamrokor-Adain family with the
2nd Defendant as his
deputy as from 12/4/2002 in the
face of the judgment and without
the knowledge of the members of
the present council of the
family headed by the Plaintiff.
X
X X
15. The Plaintiff says that
the 2nd Defendant who
is a true son of the
Onamrokor-Adain family and is
grown enough to have been well
seized with the facts here
presented has teemed up with the
1st Defendant because
he knows that the 1st
Defendant is over 90 years in
age and therefore he can use him
to alienate the lands of the
family and misappropriate the
proceeds.
16. This assessment of the 2nd
Defendant is born out by the
fact that it is he who has put
up a sign board directing people
who want part of the family’s
land to his house.
17. The Plaintiff again says
that he is convinced in his such
assessment of the 2nd
Defendant by the directions as
per a drawing he has obtained a
copy of, sent to the Land
Registry and Lands Commission
directing interested land
acquisitioners to his house.
X
X X
21. The Plaintiff says that
he sees the actions of the
Defendants as a calculated plan
to bring confusion in the family
by influencing the ignorant
young and older members of the
family to be seem to be
supporting them with promises of
financial gain from the monies
but Plaintiff says that a number
of those collaborators of the
Defendants claimed to have
elected them to the positions
they now claim to hold are not
true members of Onamrokor-Adain
family.”
This suit was supported by the
evidence of witnesses from the
family. It is trite law that a
person can sue in several
capacities, see Akrong v.
Bulley (1965) GLR 496 S.C.
Assuming therefore that the
personal part of the suit did
not survive Paul Ayitey Tetteh’s
death that of the family marched
on. Though the family sues per
its head or other proper person
it is legally distinct from such
a person as an individual and
does not die (unless by
supernatural causation) with
such an individual. There is
close legal analogy between the
head of a family and the
occupant of a stool. Hence in
Attah v. Aidoo(1968)GLR
362 at 365 Archer J (as he then
was) said:
“Mr. Gordon R. Woodman, in an
exhaustive article on
“Developments in pledges of land
in Ghanaian customary law” in
[1967 J.A.L. 8 at pp. 9-10
states:
“There is no direct authority on
the consents necessary for a
valid pledge of an interest held
by the customary-law
corporate persons the stool and
the family.”
See also Mensah v. Lartey
(1963)2 GLR 92 S.C.
It is however true that this
court has held in In re Kwao
(Decd; Nartey v. Armah
(1989 – 90) 2 GLR 532 S.C. as
stated in the headnote as
follows:
“The plaintiff in a protracted
James Town Chieftaincy dispute,
sued at the Ga Traditional
Council for a declaration as
to the status of the defendant,
Nii Kwao II, the incumbent
occupant of the James Town stool.
The dispute eventually came on
appeal before the judicial
committee of the National House
of Chiefs (NHC) which held,
inter alia, that Nii Adja
Kwao II was not a member of the
two partrilineal ruling houses
of James Town and therefore
his purported enstoolment as the
chief of James Town was null and
void and not in accordance with
custom; in effect he was not
a royal of the stool. Nii
Adja Kwao II therefore applied
to the NHC for leave to appeal
to the Supreme Court against
that decision but the
application was refused on 5th
August 1985 for having been
brought out of time, ie not
within the stipulated fourteen
days’ deadline. Nii Adja
Kwao therefore filed a motion in
the Supreme Court for special
leave to appeal following the
refusal of the NHC to grant
leave but he died before the
hearing of the application which
was thus struck out.
Consequently, in the instant
proceedings, the applicant,
claiming as the head of family
of the deceased defendant, filed
a motion in the Supreme Court
for an order of substitution for
the deceased.
Held, dismissing
the application (Adade and Wuaku
JJSC dissenting): the
plaintiff (who had sued
the defendant as a person
unlawfully claiming as the chief
of James Town) had to lead
evidence to show that the
defendant, Nii Adja Kwao, was
not descended lineally from any
member, male or female, of
either of the two patrilineal
ruling houses of James Town or
was descended from a female
member only; that if he
descended from a male member he
had not been properly nominated,
elected and enstooled as a
chief; that if he had been
properly nominated, elected and
enstooled as a chief, he had
been destooled in 1971; and if
he had not been destooled, that
he ought to be destooled. An
action of that nature was not a
representative one to be kept
alive after the death of the
person whose status was being
challenged. At best the
interest of the applicant in the
suit was sentimental only.
The real test was whether the
applicant had any personal
interest in the outcome of the
appeal. If he had not, he
ought not to be allowed to
intermeddle with it. R v
Rowe [1955] 1 QB 573, CCA
applied; Hodgson v Lakeman
[1943] 1 KB 15 doubted.”(e.s)
It must be said with the
greatest respect, that the
reasoning of Adade J.S.C.
(dissenting) at 541-545 that the
common law principle,
actio personalis moritur cum
persona did not apply to
the case in view of some of the
plaintiff’s averments to the
effect that the defendant was
not a member of any of the royal
families of the James Town
Stool, is preferable. In any
event both the majority and the
minority therein agree as to the
test for the survival of a cause
of action, namely that “The
real test was whether the
applicant has any personal
interest in the outcome” of
the case or if it can be shown
that “somebody would be
affected by the judgment of the
court.”
Applying those principles to
the facts of this case as
earlier set out supra, it cannot
be said that the first of the
consolidated suits in this case
mortur cum persona
of Nii Paul Ayitey Tetteh.
It must however be emphasized in
this case that not only were
there several averments touching
and concerning the family of
which Nii Paul Ayitey Tetteh was
head but that that family was a
direct party to the action.
That being so the effect of the
death of Nii Paul Ayitey Tetteh
is analogous to the effect of
the death of a stool occupant on
a suit to which the stool is a
party. That legal position has
been stated in Ababio v. Tutu
(1962)I GLR 489 S.C. as per
headnote (2) as follows:
“In this appeal from a judgment
of the High Court, Kumasi,
disallowing the
plaintiff-appellant’s claim for
damages for trespass to land,
it was argued that, (1) the
judge had erred in giving
judgment for the defendant as
there was no defendant before
the court. Counsel for the
plaintiff-appellant relied on
the following extract from the
record of proceedings:
“On Wednesday, 11th
January, 1961, before Apaloo, J.
Part-Head—Resumed from
1-11-60 p. 99.
Amoaten for plaintiff.
Lutterodt for
defendant.
Lutterodt:
- I understand Chief of
Assachere has abdicated and no
one occupying stool. I ask for
short adjournment to mate a
substitution.
Amoaten:
- I must point out this case
started long ago. It is most
unfortunate. I am for plaintiff
and suggest some witnesses be
taken.
Court: -
This writ was issued since 1937
and has had a most unfortunate
career. It was part-heard from
1-11-60 and fixed for two days.
I am not prepared to give
opportunity for the hearing of
this suit to be prolonged
further, especially in view of
the fact that if I accede to
this application now, this suit
may not be heard this year. The
application for adjournment is
refused and I rule that hearing
should proceed.”
X
X
X
Held:
X
X
X
(2)
a stool is a corporation sole
and whenever a stool comes to be
properly and legally before the
court, should the stool occupant
thereafter cease to hold office,
he, the stool occupant ceases to
be before the court, but not the
legal entity which is the stool.
Dicta of Deane, C.J. in (1930)
I W.A.C.A. 80 at p. 83 cited;
Quarm v Yankah II
(3)
since Order 16, rule 36,
provides in certain
eventualities for the trial
of an action to proceed in the
absence of the defendant, it is
the responsibility of the elders
of the stool to take steps to
appoint another representative
and get him substituted for the
representative who has ceased to
be before the court;
(4)
the plaintiff-appellant was
perfectly entitled to insist on
the case proceeding,
but having exercised his
undoubted right of prosecuting
his claim in the absence of the
defendant, he cannot now
complain that there was an
abdication and no substitution
and for this reason ask that the
proceedings be declared null and
void. Nana Gyarku III v.
Joseph Brew, Privy Council,
November 20, 1956, unreported
and St. Victor v. Devereux
(1845) 14 L.J. Ch. 224 at p. 246
applied;”(e.s)
The case of Re: Gomoa Ajumako
Paramount Stool (no.2);
APPLICATION FOR SUBSTITUTION,
ACQUAH APPLICANT;KWA NANA v.
APAA (2000) SCGLR394 Stands on
its own facts.
That being so the consolidation
of the two suits in this case
was validly done even though at
that time Nii Paul Ayitey Tetteh
was dead.
But if even the family itself
were not a direct party to the
suit since as aforesaid there
were several averments in the
suit touching and concerning the
interests of the family an
application for substitution
after Nii Paul Ayitey Tetteh’s
death to protect the family
interests as was in fact done in
this case was proper.
The Validity of Substitution
It is true that the formal
motion for the substitution was
never moved or granted.
Nonetheless it is very clear
from the record of appeal that
the suit was tried throughout as
a consolidated suit with Nii
Paul Ayitey Tetteh as
substituted by Arthur Hammond
Tetteh Quarcoo, without
objection. Indeed the
Plaintiffs in the second suit,
BFA 31/2005 averred in
paragraphs 2 to 4 of their
statement of claim as follows:
“2. The Plaintiffs were elected
by the heads of the six (6)
houses constituting the
Onamroko Adain
Family of Accra on 25th
March 2002 by a majority of
five
(5) to one
(1), according to customary law
and usage.
3. The Caretaker of the
Onamrokor Adain Family properly
prior to 25th March,
2002, Paul Ayittey Tetteh,
filed a suit challenging the
election of the
Plaintiffs, which suit –
Suit No. F2453/2002 – is pending
at an Accra High
Court.
4. The said Paul Ayittey
Tetteh has since died and has
been substituted by the 1st
defendant herein in the said
suit.” (e.s)
In those circumstances the said
substitution ought to be deemed
as having been effected,
unhampered by any formalistic
procedural ceremonies under the
Rules of Court, otherwise the
Rules will become masters rather
than servants. Thus in Re
Stone and Saville’s Contract
(1963) I AIIER 353 C.A at
357-358 Upjohn `L.J. said of an
issue that was fought out
between the parties although it
was not raised in the summons,
as follows: “It seems to me
that, on the facts of this case,
the summons, as treated as
amended (because that is
really what happened), is
perfectly proper to raise the
issue” .(e.s) Again in Obeng
v. Boateng (1966) GLR 689 at
696 Amissah J.A.(sitting as a
High Court Judge), said:
“I have noticed that the second
defendants filed a statement of
claim in the third party
proceedings to which the
third parties filed a defence,
although there is no record of
their having entered an
appearance to the third party
notice.
X
X
X
Although the third parties did
not formally enter an
appearance, they have taken
sufficient part in the
application for directions to
stop anyone from complaining
about their failure technically
to comply with the provision on
entry of appearance: see
Boyle v Sacker.”(e.s)
Effect of Wrong Reasons
From all the foregoing it is
clear that the Court of Appeal
erred in nullifying suit no.
F.2453/02. Its confirmation of
the trial judge’s findings
concerning the headship of the
Onamrokor Adain Family is
therefore sustainable.
A close study of the reasoning
of the Court of Appeal reveals
that it took the view that
though (erroneously as
hereinbefore demonstrated) suit
no. F2453/02 was non existent
and its consolidation with suit
no. BFA 31/2005 was a nullity,
yet the trial of the latter suit
was not thereby vitiated.
After anxious reflection we
think that this view is right.
If suit no. F2453/02 did not
exist that cannot mean therefore
that suit no. BFA 31/2005 did
not exist. If so the purported
trial of the latter suit
together with another suit which
proves to be non existent cannot
nullify the trial concerning the
latter suit. After all the
common thread in both suits was
the headship of the Onamrokor
Adain Family and evidence was
commonly led as to that issue,
there was therefore no question
of severability. The parties
led their evidence in dual
capacities reflective of the two
suits at the same time.
The element of nullity in
proceedings is not always
disastrous. In Addai v. The
Republic (1973) I GLR 312
C.A the trial judge took
evidence of a witness when the
jury was not yet empanelled and
he directed the jury on that
evidence as well. It was held
that though the initial part of
the trial was a nullity there
was sufficient evidence aliunde
to support the conviction.
Again in Obadzen II v. Onanka
II (1982-82) GLR 46 the
Court of Appeal sustained the
trial although the suit had been
transferred to the High Court
for trial by a magistrate
contrary to the stipulated
statutory procedure, holding
that after all the High Court
had concurrent jurisdiction
over the case. In this new
judicial era of substantial as
opposed to technical justice we
would go along with that
approach.
In any event as we elaborately
demonstrated earlier the
reasoning of the Court of Appeal
concerning the validity of the
consolidation and existence of
suit no. F2453/2002 is
erroneous. That being so it
means that the Court of Appeal
arrived at the correct decision
though for wrong reasons in the
steps leading to the same. That
cannot vitiate their judgment
because it is settled law that
an appellate court can affirm
the decision of a lower court
which is correct but is founded
on wrong reasons. Thus in
Abakah v. Ambradu (1963)1
G.L.R. 456 at 464 Mills-Odoi JSC
delivering the judgment of the
Supreme Court said:
“The judgment of the learned
trial judge was based on wrong
application of the law in
Lartey v. Mensah (supra)
which cannot be supported. But
a Court of Appeal is entitled to
uphold a judgment, if proper
grounds exist on the record to
justify the judgment, even
though it cannot be supported
for the reasons given by the
court which gave it.”
Likewise, in Seraphim v.
Amua-Sekyi (1971) 2 GLR 132
at 134 Apaloo J. A. bluntly said
: “….Indeed in this court,
no judgment is upset on the
ground that its ratio is
erroneous if there is another
sound basis on which it can be
supported.” See also
Duah v Debra (1967) GLR 456
C.A, Benneh v. The Republic
(1971) 2 GLR 354 C.A at 360 per
Koi Larbi JSC, Appianing v.
The Republic (1972)I GLR 123
C.A and Mensah V. Ghana
Football Association
(1989-90)I GLR I S.C. In the
last mentioned case, at p.8
Amua-Sekyi JSC speaking for the
majority said:
“…Even though we are unable
to agree with the approach of
the Court of Appeal to the
matter, we think that its
decision can be supported in
that, in the circumstances of
this case, it would be unjust to
refuse a stay of execution.”
All this is statutorily
supported by the Rules of this
Court, C.116, r.6(6)-(8) as
follows:
“(6) The appellant shall not,
without the leave of the Court,
argue or be heard in support of
a ground of appeal that is not
specified as a ground of appeal
in the notice of appeal.
(7)
Despite subrules (1) to (6),
the Court,
(a)
may grant an appellant leave to
amend the ground of appeal on
the terms specified by the
Court; and
(b)
shall not, in deciding the
appeal, confine itself to the
grounds set forth by the
appellant
nor shall the Court be precluded
from resting its decision on a
ground not set forth by the
appellant
(8)
Where the Court intends to rest
a decision on a ground not
set forth by the appellant in
the notice of appeal, or
on a matter not argued before
it, the Court shall afford
the parties reasonable
opportunity to be heard on that
ground or matter without
re-opening the whole
appeal.”(e.s)
The last ground of appeal is
clearly imaginary. The Court of
Appeal made no such direction as
is therein complained of and
even if it did it was warranted
by its concurrence on the issue
of headship of the family, with
the findings of the trial judge.
For all the foregoing reasons
the appeal is dismissed.
W. A. ATUGUBA
(JUSTICE OF THE SUPREME COURT)
DATE-BAH (DR)
(JUSTICE OF THE SUPREME COURT)
J. ANSAH
(JUSTICE OF THE SUPREME COURT)
S. O. A. ADINYIRA (MRS)
(JUSTICE OF THE SUPREME COURT)
R. C. OWUSU (MS)
(JUSTICE OF THE SUPREME COURT)
COUNSEL
JAMES AHENKORAH FOR JAFRO MENSAH
LARKAI, THE APPELLANT.
NATHANIEL MYERS FOR ARTHUR
HAMMOND TETTEH QUARCOO AND FOR
ONAMROKOR ADAIN FAMILY, THE 1ST
RESPONDENT.
MRS. M. Y. ACHIAMPONG FOR
JUSTICE AYAA CUDJOE, THE 2ND
RESPONDENT.
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